December 03, 2010

WikiLeaks: Distinctions I didn't know I made

--by Sebastian

I feel like I'm still sorting through my thoughts about WikiLeaks. So if this seems a bit contradictory, that may very well be because I'm of (at least) two minds about the whole thing. But it seems to me like the issue lacks balance.

My pre-WikiLeaks initial thoughts on such issues were something like: the government overclassifies information that shouldn't be secret, it often uses the power to make something secret to avoid accountability for its misdeeds, and we can't often trust the government to police itself. So when I first heard about WikiLeaks, I was relatively open to the idea.

As things have evolved, I find myself in a weird position. I still feel WikiLeaks is on to something with their critique of over-secrecy, but their approach to their mission is getting vexing. I think the problem for me boils down to a distinction I didn't know I made until today: the distinction between whistleblowing and other non-whistleblowing leaks.

Whistleblowing is the revelation of communications or actions that the society has already decided are wrong/immoral/evil/illegal. When soldiers leaked about US authorized torture, that was whistleblowing. We have laws against torture. We have culture norms against torture. Our operatives are not supposed to be torturing. When they are torturing, it serves the accountability process for a whistleblower to deny them the ability to hide behind the government's powers of secrecy. This kind of leaking allows the government to have appropriate methods of operational secrecy without always letting them get away with misconduct by hiding behind the secrecy. These leaks may or may not be illegal, but I can see the need for them to counterbalance against the government's very strong temptation to inappropriately hide its misdeeds under the veil of secrecy.

So at the time of the WikiLeaks Afghanistan data dump, I felt that the organization was insufficiently careful about protecting relatively innocent third parties, BUT it seemed as if they were largely operating from a whistleblowing approach. They showed many situations where the rules of engagement were being ignored, and how this put the lives of many people in danger. They revealed more about the torture situation.

Whistleblowing is about letting the other existing norms, laws and rules of our society be enforced even when the government or other entities would prefer to hide violations of these norms, laws and rules behind a veil of secrecy. It provides a balance against the very strong temptation to misuse secrecy.

But that isn't the same as saying that secrecy cannot be appropriate. Nor is it the same as saying that all leaks are whistleblowing.

This most recent document dump, doesn't seem to share much from a whistleblowing point of view. I'm sure there are SOME things that point to violations of norms/laws/rules that we as a society have decided to hold as important, but for the most part the document dump doesn't show that. I'd like to say that this dump is fundamentally different from the previous one, but after reading interviews with Assange I see that he has a much more broad assault against secrecy in mind than mere whistleblowing. So it may very well be that what I interpreted as something like whistleblowing gone too far, was actually something fundamentally different with whistleblowing elements.

The problem I have with Assange and Wikileaks from my current point of view is that he wants to rob the rest of society of the chance to negotiate the norms. He isn't merely providing facilitation for whistleblowing. He wants to take out the balance part of balancing secrecy against other norms. That doesn't strike me as a sound approach to dealing with the very real problems of government secrecy.

Comments

On the other hand, how can one negotiate norms when one side is empowered and incentivized to broaden its secrecy powers, and the other side is perpetually in the dark as to not only what is being kept under wraps, but also by what rules some things are determined to be secret?

Assange has done something vital here: he has temporarily provided relief in the assymetric warfare between a government's Orwellian impulses and the citizenry's ability to question what the government does on its behalf.

"On the other hand, how can one negotiate norms when one side is empowered and incentivized to broaden its secrecy powers, and the other side is perpetually in the dark as to not only what is being kept under wraps, but also by what rules some things are determined to be secret?"

That isn't really the other hand is it? That is the whistleblowing hand. Assange wants to go much further than that.

If you want to make that distinction, you have to get down to the level of each single diplomatic cable or each Afghan war report that was leaked.

Some of these are whistleblowers - revealing that the SecState tasked diplomats with spying on U.N. personnel in violation of international covenants our country is party to; some are not - revealing that Berlusconi is a chauvinist party boy.

Beyond the debatable utility of each leaked document by itself, there's the general benefit that WikiLeaks offers an uninformed public regarding government secrecy. With a complacent, dumbed-down media refusing to play any meaningful watchdog role, WikiLeaks has essentially become our government watchdog - and the watchdog of the whole world.

Also, keep in mind that Assange publishes the information, but it's not Assange who leaks it - he simply passes on the information from people who do the actual leaking to the public at large, usually with a pretty thorough process of vetting to check the credibility and ensure that no individuals are likely to be harmed.

Contrast this action with the actual lost lives that government secrecy has concealed (21 children and 14 women being killed in one of our airstrikes in Yemen, as an example) and you should easily see that Assange's actions and organization, at least up to now, pose much greater benefits than harms to the U.S. and the world.

Some of these are whistleblowing, others aren't. So far as I can tell, the vast majority of these weren't. So perhaps he should stick to the ones that are.

"Also, keep in mind that Assange publishes the information, but it's not Assange who leaks it - he simply passes on the information from people who do the actual leaking to the public at large, usually with a pretty thorough process of vetting to check the credibility and ensure that no individuals are likely to be harmed."

That's the claim. We of course can't know very much about how his shadowy operation works, because it is in fact so secretive. I think the best we have is the relatively amorphous claim that sometimes they consulted with the Guardian.

Isn't part of Wikileaks' point that a lot of these things that are "secret" aren't really secret for any good reason, though? So the fact that many of them aren't dramatic whistleblowing papers seems like it's part of the point, yes?

Sebastian, which part of his claim do you want to falsify? The claim that the process of vetting was thorough? You could do that by looking for names or other identifying information that Wikileaks failed to redact. His claims seem to me to be plenty unfalsifiable.

"You could do that by looking for names or other identifying information that Wikileaks failed to redact."

Which you can find in the Afghan files. I can't access the current set (I'd presume because of the rolling DOS attacks). But in the previous set you could get to names, specific position titles that almost certainly identify single people in medium sized towns, and other specifically individualized information.

"Isn't part of Wikileaks' point that a lot of these things that are "secret" aren't really secret for any good reason, though? So the fact that many of them aren't dramatic whistleblowing papers seems like it's part of the point, yes?"

Diplomatic cables are pretty much one of the most classically and broadly accepted types of documents that are kept secret. Releasing them without, for example, concern for how notoriously touchy North Korea might overreact, is crazy.

Further, diplomats need to be able to give candid reports. Such things may include unflattering descriptions that will make diplomatic engagement (at least with that particular diplomat) more difficult if casually revealed. Human beings are touchy. Part of diplomacy is about smoothing that over. This intentionally frustrates that.

And that is the critical point that Mr. Assage disagrees with (or seriously doesn't get). Good manners requires that one not make a point of telling people what you really think of them. You don't have to like someone to refrain from shouting to the world that they are a piece of scum.

But having a government make good decisions on how to proceed in the world requires having accurate information about the people and places it deals with. Accurate information which requires saying things in diplomatic cables tht are not, to put it bluntly, diplomatic.

So there is a choice: you can accept that diplomatic communications generally need to have some kind of confidentiality, or you need to accept that governments will make bad decisions thru ignorance. Avoidable ignorance.

Whistleblowing is the revelation of communications or actions that the society has already decided are wrong/immoral/evil/illegal. When soldiers leaked about US authorized torture, that was whistleblowing. We have laws against torture. We have culture norms against torture.

Sebastian, somebody always has to decide. We've learned over the past few years that the US does not, in fact, have culture norms nor (meaningful) laws against torture. "Society" does not, in fact, believe that torture is wrong/immoral/evil/illegal.

Apparently you don't like torture, and I'm with you on that. But you can't invoke "society" to justify your opinion.

There is a strong whistleblowing component to Assange's actions. Here's Juan Cole's view of the Top 10 revelations in the latest data dump. All are significant matters, and the world has benefited from all of these things being exposed.

But frankly, I don't agree with Cole's list. Personally, I think the top thing that Wikileaks revealed was the lengths to which the U.S. government went to strong-arm allies to conceal U.S. complicity in, yes, torture.

Your indifference to this does, I think, correctly reflect the values of our larger society. For my part, though, I'm glad Assange is making these decisions and not you, and not society.

"How is it that Wikileaks should be able to annoit itself as the "deciderer" of what should and shouldn't be secret?"

Yeah, we should trust the government to do that. They always do such a good job and there are checks and balances and watchdog journalists (who, however, would never ever acquire government secrets and publish them) and magical ponies trotting around making sure everyone obeys the rules.

Meanwhile, in a land far distant from the one I just described, how is it that the government, any government, should be able to lie about who is bombing Yemen and killing civilians, or whether a Honduran coup was illegal, or secretly press Spain not to allow its justice system to examine our war crimes or secretly judge that Sri Lanka probably committed mass murder in its suppression of the Tamil rebels? Why shouldn't we know that Jane Harman asked the Egyptian government to crack down on smuggling into Gaza (and thereby further wreck the wrecked Gazan economy)? Are these among the diplomatic secrets we ought to have concealed from us, lest our government fail to protect us and not be able to do wonderful things all over the world?

I'm hopeful there will be more revelations like the ones above.

"So there is a choice: you can accept that diplomatic communications generally need to have some kind of confidentiality, or you need to accept that governments will make bad decisions thru ignorance. Avoidable ignorance."

Imagine what might have happened if we hadn't been able to rely on our government's secret intelligence and diplomatic sources regarding the threat that Iraq posed to us back in 2002? I shudder to think what catastrophic blunder might have been made if wikileaks had been around then.

I work for a mid-size defense contractor. Earlier this week the corporate security office sent a memo to everyone reminding us that: 1) Wikileaks was blocked at the company firewall; and 2) people who had security clearances should not go to the Wikileaks site on their home computer.

This is just plain stupid, but it's logical to SOMEBODY, apparently. And it's logical because, once you accept the idea that secrets must be respected even by those who are outside the conspiracy, then it is obviously the duty of polite society to avert its eyes from information that the conspirators were unable to keep under wraps.

How is it that Wikileaks should be able to annoit itself as the "deciderer" of what should and shouldn't be secret?

How should anyone? This is where the discussion gets a little weird for me. I don't see it as a matter of who should or shouldn't be able to decide so much as whether or not the decision was a good one. I mean, it's not like there's something on a stone tablet written by God or a natural law involved. We're all just a bunch of humans on this planet. Sometimes we agree and sometimes we don't. We put institutions and laws in place to keep people from violating what we think are the rights of others. When someone violates those laws, they are subject to punishment by way of those institutions. Aside from that, it's just a matter of whether or not you agree, whether or not you like what someone did.

If Assange (or Wikileaks) did something differently and you agreed with it, would you question whether or not he should be able to decide to do that thing? If you see something going on that you feel is deeply wrong, why shouldn't you do something about it? Should you wait for someone better to come along while the world goes to hell, someone who's qualified? On what basis?

Sometimes, yes and sometimes no. I wouldn't try to remove someone's brain tumor, because there are trained surgeons who know how to do that without killing the afflicted. But in the case of Wikileaks, who was there? Who you gonna call? Ghostbusters? The US DoJ? The UN? How much crap has to go down and how many people have to die before someone can decide it's time to take some sort of action?

Maybe Wikileaks is going to seriously eff things up. I don't know. I think it's a good thing overall, even if I don't agree with every single thing they've done. But if someone who truly thinks things have gone terribly wrong, who thinks he or she can do something to help, however small, and who doesn't see a prospect of anyone in a better position to do something actually doing something, why shouldn't he or she take action?

We all run the risk of being wrong all the time, but we don't just sit and do nothing, since we might be wrong about doing nothing, too.

Maybe I'm just reading too much into the wording of the question, but I don't get it.

Yes, we should be able to trust the government to do the job right, but it is clear that it has not done so. The best solution, to the extent that there ever will be one, is to have an ombudsman's office that is responsible for reviewing classified documents and "improperly" leaked documents with the duty to correct the classification level and to punish those in government who are misclassifying for personal gain or to protect someone from embarrassment.

Sometimes that works. Sometimes not. Unfortunately there's never a guarantee, but aside from NGOs like Wikileaks, the only alternative is an active policing from within the government.

The more recent development for me in the past six months or so was that at least a few of the hundreds of pieces of spam that go each day to gary underscore farber at yahoo dot com now sometimes arrive as sent by someone named "Gary Farber."

At least they're not using my e-address as a spam source, or I'd have to finally give that address up.

My gmail account is relatively spam free, so I'd move to that, and another as back-up. But I won't until necessary.

But if you get spam selling enhancement products, offers of large sums of money, confidential offers, porn, gReAT prEScr*pT0nmedz, N*kes, well, they're probably from me.

Isn't part of Wikileaks' point that a lot of these things that are "secret" aren't really secret for any good reason, though?

I wonder if one of the differences between me and e.g. russell or Sebastian on this issue is our estimates of "secrecy bloat". I am starting from the assumption that, at present, less than 10% of the items the US government classifies as "secret" really need to be secret. Furthermore, the vast majority (=90% or more) of that "necessarily secret" material needs to be secret to protect military actions we shouldn't be taking in the first place.

So, to me it seems as though legitimate national security needs aren't driving security bloat, they're an excuse. Indeed it's as though they're a hostage: valid security issues are salted through the Security State, the real function of which is to protect government and its cronies from scrutiny or embarrassment.

are pretty much one of the most classically and broadly accepted types of documents that are kept secret.
Sebastian, the diplomat corps acknowledges on the cables that the cable will be secret for 10 years. So, even assuming that cable may be reclassified for another 10 years ad finitum, ambassadors (most often a money appointment) are actually writing stuff like this down.
I know not all ambassadors are the brightest sparks, but seriously? They write this down?
They do so because their norm is secrecy. They operate on the presumption this stuff will never see the light. For almost no other reason, I'm glad Assange is doing what he does. More, please.

I wonder if one of the differences between me and e.g. russell or Sebastian on this issue is our estimates of "secrecy bloat".

I'm pretty much at the point where I think I've said everything I want to, but on this, I'll make my last comment. I can't speak for Russell and Sebastian, but I'd agree with your estimate of secrecy bloat. However, I am pretty sure that is not Assange's interest, which is why I've taken the position I have.

Also, if you are arguing that we shouldn't keep secrets because the military is doing something wrong, you are a short step from saying we should reveal secrets in order to degrade our military capability. Not wanting to get involved in the potential arguments there and making no assumptions of what you thinking when you say this, I just have to wonder if that is a place where you think it would be helpful arguing for the revelation of secret government material?

At any rate, I think you'd agree that it is not possible, in practical terms, to have only what needs to be secret kept secret and no more, so if you think that there is a functional need for some secrecy (and some here don't, but if you acknowledge a 10% figure, you are acknowledging that fact), there will be inevitable secrecy bloat. My composition teacher told a story related to this. One of his first major gigs was writing a soundtrack for a movie, and he got the job even though he have very little experience in scoring for a full orchestra. So when he was asked what he needed, he basically asked for 4 times what he thought he needed, because he couldn't run out and get a section of violas. He then wrote the parts with different color ink (this was way before computers) so he if he wanted to reduce the size, he just had to say 'only the people with the red parts play'. Secrecy is (unfortunately) like that, so your 10% estimate has to revised upward, though this is not to defend everything that is currently secret.

Furthermore, there are things that are secret that had a good reason to be secret, and there was no allowance for declassifying them, though they no longer need to be classified. My father worked as an oceanographer and the ocean floor maps that he worked on were classified because of they were used by US submarines. They couldn't say 'well, in 20 years, the USSR will break up and these won't need to be classified any longer, so we can say that they will be declassified in a couple of decades.' A similar situation obtains with laws, which will remain on the books, but changes will have rendered them obsolete.It is not necessarily worth the effort (especially in an era of shrinking government budgets) to try and figure out what needs to be declassified, so it stays secret, contributing to bloat.

This is also not to say that we are anywhere near the optimum ratio, but I also think that incremental progress was being made along the lines of declassification, thought 9-11 and the Bush administration probably was a set back. But if you think this was a good way to try and get secrecy bloat reduced, I disagree.

And Tom M, I don't think the cables are solely the work product of ambassadors and you certainly can't expect them to be sitting on call waiting to give their recollections about this event or the other. You also can't have 20-20 foresight into what information is needed so you write down lots more stuff. April Glaspie's talk with Saddam before the invasion of Kuwait might have been one of those unimportant meetings where you wonder why she is writing down stuff, but later, it turned out to be very important. You may think that speculation about Gadhafi's Ukranian nurse might be simple gossip, and speculation about Gadhafi's quirks may have been silly, but some of the cables underline a situation where was important to understand Gadhafi on a personal level, in order to avert both an environmental disaster and the possibility of radioactive material falling into the hands of terrorists. (link) Maybe other things are much more benign, but this sort of observation of personal quirks and foibles is not something you turn on for some and turn off for others when you feel they don't pose a threat.

How is it that Wikileaks should be able to annoit itself as the "deciderer" of what should and shouldn't be secret?

How should anyone?

Absent other factors, I'd say that the actual parties engaged in a confidential conversation have first crack at deciding what should and should not be public.

The "absent other factors" is the tricky part.

Is there a public interest in knowing what, frex, diplomats are discussing that trumps their (the diplomats') interest in keeping it secret.

A very difficult question to answer in the abstract. It depends.

I wonder if one of the differences between me and e.g. russell or Sebastian on this issue is our estimates of "secrecy bloat".

Just to clarify the position I've taken throughout this debate:

For good or ill, as a basic ground reality diplomacy assumes, and relies on, confidentiality.

People who speak for large institutions, including but not limited to governments, frequently find it necessary, or at least very very useful, to present a different point of view when speaking in public, than when speaking privately.

Quite often, this is not an indication of bad intent or mendaciousness on their part. It's just baked into the reality of the situation. It's the way the game works.

I venture to say that each and every person reading this has some direct experience of this in one sphere or another.

Yes, we live in a complicated and morally ambiguous world.

The Wikileaks dump undermines the assumption of confidentiality. Various forms of entertainment will no doubt ensue.

Good? Bad? IMO it depends.

And in Assange's world, unless I completely misunderstand what he's about, there is no "it depends". Secrecy bad, disclosure good.

That strikes me as reckless, and as being as likely to do harm as good.

I don't think Assange is a terrorist, I don't see him as a criminal, I think quite a lot of his analysis has merit, I share his distrust of US (and other) motives and actions.

I just think he's a reckless guy. To me, he lacks either an understanding, or a regard for, the potential for harm in his actions.

That's my point of view.

I have no opinion on "security bloat", I don't care about process vs utility, and I tend to think the reaction to Assange, in all directions, is overblown.

I just think he's a reckless guy.

Sometimes good history is made by reckless guys. Sometimes ungodly calamitous cockups are made by reckless guys.

It remains to be seen in which of those directions Assange's project takes us.

My father worked as an oceanographer and the ocean floor maps that he worked on were classified because of they were used by US submarines. They couldn't say 'well, in 20 years, the USSR will break up and these won't need to be classified any longer, so we can say that they will be declassified in a couple of decades.'

You're not telling the whole story here, are you?

The US government funded lots of oceanography research during the cold war, including ocean floor mapping. The real maps thus obtained were classified, it is true. But they also produced false maps as part of a disinformation campaign and published them as serious research. If you were doing oceanography work and didn't have a security clearance, you had no idea: all the maps that you relied on were garbage and no one could tell you. But if you had clearance, then you knew about the secret true maps.

Think about that for a moment. How many oceanographers wasted years of their life trying to understand garbage data? Can you imagine being an oceanographer with clearance whose friends down the hall didn't have clearance? You'd see them every day but you wouldn't be able to tell them that their life's work was a complete joke, on pain of death.

There being no open thread since a week ago Friday, and my not having time to create one until at least next week, a pointer back to this off-topic query about an ObWi Berkeley/Oak/Bay Area get-together between December 10th and 20th.

If there are no other open threads before then, I'll try to start one next week, but no promises, and probably settling on a place and time very shortly would be a Good Thing if this is going to happen.

Apolgies for being off-topic, but the last open thread is off the front page and off the sidebar, and was more than a week ago, so it's unreasonble to expect anyone to find it.

I'd be interested to see your cite to that and which oceanographers you are referring to who were not given clearance but their friends were. Who was doing oceanographic work that was completely unfunded by the government, yet required the information the government was getting on ocean floor mapping? And were they false maps or did they fail to have the level of detail that the classified maps did? It seems incredibly specific to suppose there were oceanographers who were interested only in the effects of temperature clines on the transmission of soundwaves in water, but were unable to get clearance and therefore unable to get the information, so their talents were left to languish. But oceanography is a pretty big field, so it is reasonable to assume that they chose something that was less vital to the nation's defense.

The Cold war was essentially responsible for the funding of modern oceanographic research, and the need of civilians to know about temperature clines or how tall specific seamounts were was certainly not a pressing need and the opportunities to use such information were limited at best. It is unfortunate that there was a Cold War, but there were attempts to broaden international cooperation by people like Roger Revelle, who was the director of the Scripps Institute during the 60's. Furthermore, many of the people who went into oceanography in the 50's came from the Navy, and were motivated by patriotism as much as science. It would have been great not to have a Cold War, but your impassioned denunciation (oceanographers poring over false data whose colleagues were flirting with death to even talk with them?) pretends, like Assange, that the only problem involved was secrecy.

"I wonder if one of the differences between me and e.g. russell or Sebastian on this issue is our estimates of "secrecy bloat". I am starting from the assumption that, at present, less than 10% of the items the US government classifies as "secret" really need to be secret. Furthermore, the vast majority (=90% or more) of that "necessarily secret" material needs to be secret to protect military actions we shouldn't be taking in the first place."

I don't think we have very different estimates of secrecy bloat. In fact I might even put the appropriate level at a bit lower than 10%. The problem is that worrying about such things doesn't seem to be of much interest to Assange. I would have liked to see some wisdom exercised.

Was it wise to release the cables about North Korea two weeks after they signaled an aggressive posture by showing us the new and scary nuclear project, and only a few days after they shelled portions of South Korea? Almost certainly not. Was it helpful to publicly release diplomatic cables which reveal (the almost certainly accurate) appraisal that Putin and mob ties are still pulling the strings in Russia while we are right in the middle of talks about keeping their nuclear arsenal contained? No. Even if Putin suspected we thought that, there is a very human reaction to having that publicly stated, rather than privately suspected. Assange doesn't appear to care about that. And note that in neither of those cases does the release have any whistleblower status. Those aren't cases where there is US wrongdoing. He just released it because he has a fundamentalist anti-secrecy ideology. His theories cause him to brush aside most concerns that most of the world have about appropriate secrecy.

As I said in the main post, I could support him as a facilitator of whistleblowing. But his agenda goes far beyond that.

"For good or ill, as a basic ground reality diplomacy assumes, and relies on, confidentiality.

People who speak for large institutions, including but not limited to governments, frequently find it necessary, or at least very very useful, to present a different point of view when speaking in public, than when speaking privately."

I suspect that in the majority of cases this is not a good thing. There are going to be obvious exceptions to this, where governmental deception is good and transparency is bad and I can give examples like anyone else--in WWII it was extremely stupid for the Chicago Tribune (or whichever paper it was) to let out the secret that the US had broken Japanese codes. (I'm also not sure how the newspaper knew this.) Apparently the Japanese didn't notice the story, IIRC, but that was extraordinarily irresponsible of the newspaper to publish that info.

But much of the deception that goes on is malignant, and in some cases I would go further and call it evil, wicked, morally depraved. Lying about human rights violations falls in this category and that happens under Democrats and Republicans alike and it's common. If we want to support some policy that will hurt civilians and might even be intended to hurt civilians we will lie about it. I've got a copy of Joy Gordon's newly published book on the Iraqi sanctions which I haven't gotten around to reading yet. I read an article by her in Harper's years ago. From what I remember the US was deeply cynical about what it would allow into Iraq--in theory we were trying to prevent Iraq WMD programs from getting off the ground, but we were also trying to wreck the economy and bring down Saddam by making the population suffer (similar to the blockade on Gaza, but on a larger scale). You have to lie to the public about your methods and the effects of your policies in such situations--it's not acceptable to come right out and say "We intend to hurt the civilian population as a means to bring down or at least weaken Saddam." Lying about who and what our government does is an integral part of policies where we either inflict suffering on civilians or support others who do. Expecting honesty from our government on what it is doing now is insane and unfortunately, expecting very much from our lapdog press is almost as foolish and the problem did not start with Bush. To take another book, (one that I have read), look at Philip Knightley's "The First Casualty" and read the section about Kevin Buckley, Newsweek, and Operation Speedy Express. Buckley found that there were about 11,000 reported guerillas killed and only 700 weapons reported captured. He did a lot of reporting legwork in the Mekong Delta and found that the 9th Army Division commander had placed huge emphasis on having a high bodycount and the result was massive civilian casualties. No matter what your view of the Vietnam War, in a morally serious democracy (something which may not exist), that would have been cause for serious investigation and possible war crimes trials. Instead, Newsweek ran a greatly shortened version of Buckley's piece and even that was a battle for Mr. Buckley--the editor told him that after what they'd written about My Lai, more stories like this would seem like a gratuitous attack on the administration. The Pentagon responded to the story and Buckley wanted to do a followup, but Newsweek only allowed a tiny rebuttal to a letter.

That's our watchdog press in most cases. We badly need groups like wikileaks to do the job they mostly refuse to do. Which doesn't mean wikileaks will always make the right judgment call either.

On less dramatic cases, it's hard to work up much interest. The NYT mentioned today a German official in a political party (I forgot the details and won't link) who was a confidential source for the US about what was going on in some meetings. This source was blown by wikileaks and has now lost his position. Boohoo. Yes, this will make it harder for the State Department to find sources who will spy on our allies. Presumably this will be balanced by sources leaking to wiki which will make it harder for our allies to spy on us. If not, take comfort in the fact that the leak has strengthened German democracy by leaking information about a German leaker.

As one who once had a security clearance (as did several other family members), I find this discussion very interesting.

Good points have been made on both sides. But if one believes that any of the secrecy (whether 90% or some other amount) is unjustified, one might also believe that the best thing to do is to dump the lot (as Mr. Assange is apparently going to do) and start over, having considered the need more carefully.

It's like ripping off a bandaid; it hurts, but then it's done and the wound can be cleaned. And clearly, something needs to be cleaned up here.

Another view of wikileaks and US diplomacy--the writer thinks wikileaks has done a service by pointing out our incompetence in that field (and no, he doesn't mean how bad we are at keeping secrets). Obviously some sort of commie anarchist.

How should anyone? This is where the discussion gets a little weird for me. I don't see it as a matter of who should or shouldn't be able to decide so much as whether or not the decision was a good one.

Well, going forward it's also a matter of how confident we can be that Assange's interests line up with ours. I have no way of gauging that, and I don't know that anyone else does, or can.

If you have 'secrets' known by millions, they aren't 'secret'. They're just privilaged, generally to the powerful and wealthy.

True secrets, the sorts government has a legitimate interest in protecting, are limited. The more people that know a secret, the less likely it is to remain a secret.

Stuff like Wikileaks? It kills 'casual secrecy'. You can't draw a veil over something like that, not when functioning government apparently requires a few million people to be able to access it.

And if you needed it to be kept secret, you'd darn well find a way to get by with a LOT fewer people knowing it.

Wikileaks is supposed to, I take it, act like a counter-pressure on secrecy. If too many people know it, it will leak. Especially if the data is such that the average user sees no real reason it should be secret.

A diplomat's gossipy observations about the European union are one thing, nuclear launch codes are another.

Wikileaks allows everyone to see a leak. Ergo, governments that routinely classify large amounts of data as 'secret' seem to have only two recourses to deal with a potential horde of leakers:

Keep it secret through fear of severe and harsh punishment for leaking it....or retain a lot fewer secrets, of the sort that have an obvious need for secrecy, held only by a relative few.

Secrets known to millions that are, on the face of it, mostly stuff that has no reason to be classified at ALL practically begs to be leaked.

If Assange (or Wikileaks) did something differently and you agreed with it, would you question whether or not he should be able to decide to do that thing?

My objection is that Assange basically did the same thing that Scooter Libby did. They both leaked classified information. I just don't understand how so many people can object to one but totally support and justify the other.

I have absolutely no problem with Assange being against the war, but that doesn't entitle him to commit illegal acts. There are plenty of other things he could have done.

"Secrets known to millions that are, on the face of it, mostly stuff that has no reason to be classified at ALL practically begs to be leaked."

No. This is getting to urban legend level. If you count everyone who had access to some *portion* of the database you get three million people. The diplomatic cables, for example were not general distribution. No one, or almost no one was supposed to have access to the full database. Each person had an authorized access level which was supposed to restrict them to the types of documents that were related to their job.

Manning, using methods not clear at this time, gained much larger access than he was supposed to be able to. See for example his charge sheet:

SPECIFICATION 3: In that Private First Class Bradley E. Manning, U.S. Army, did, at or near Contingency Operating Station Hammer, Iraq, between on or about 13 January 2010 and on or about 19 February 2010, knowingly exceed his authorized access on a Secret Internet Protocol Router network computer and obtain information that has been determined by the United States Government pursuant to an Executive Order or statute to require protection against unauthorized disclosure for reasons of foreign relations, to wit: a classified United States Department of State cable titled “Reykjavik 13,” and did willfully communicate, deliver and transmit the cable, or cause the cable to be communicated, delivered, and transmitted, to a person not entitled to receive it, with reason to believe that such information could be used to the injury of the United States or the advantage of any foreign nation, in violation of 18 U.S. Code Section 1030(a)(1), such conduct being prejudicial to good order and discipline in the armed forces and being of a nature to bring discredit upon the armed forces.

SPECIFICATION 4: In that Private First Class Bradley E. Manning, U.S. Army, did, at or near Contingency Operating Station Hammer, Iraq, between on or about 19 November 2009 and on or about 24 May 2010, knowingly exceed his authorized access on a Secret Internet Protocol Router network computer and obtain information that has been determined by the United States Government pursuant to an Executive Order or statute to require protection against unauthorized disclosure for reasons of foreign relations, to wit: more than 50 classified United States Department of State cables, and did willfully communicate, deliver and transmit the cables, or cause the cables to be communicated, delivered, and transmitted, to a person not entitled to receive them, with reason to believe that such information could be used to the injury of the United States or the advantage of any foreign nation, in violation of 18 U.S. Code Section 1030(a)(1), such conduct being prejudicial to good order and discipline in the armed forces and being of a nature to bring discredit upon the armed forces.

...

SPECIFICATION 7: In that Private First Class Bradley E. Manning, U.S. Army, did, at or near Contingency Operating Station Hammer, Iraq, on divers occasions, between on or about 19 November 2009 and on or about 27 May 2010, intentionally exceed his authorized access on a Secret Internet Protocol Router network computer and obtain information from an the United States Department of State, to wit: more than 150,000 diplomatic cables, in violation of 18 U.S. Code Section 1030(a)(2), such conduct being prejudicial to good order and discipline in the armed forces and being of a nature to bring discredit upon the armed forces.

The idea that all of the documents were supposed to be accessible to all of the users is flatly wrong.

If Manning leaked, I bet he did not leak to Assange personally. No doubt our crack interrogators are ... encouraging ... him to reveal to whom he actually gave the files. More than likely, that bit of information will be "classified", for our own good. As will any hint of how a PFC got access to that much data. We shall have to wait for a "whistleblower" to reveal that.

Really? Has anyone declared war against Assange? As far as I've read, he's a criminal suspect in that the Justice Department is investigating whether to prosecute (not to mention the sexual abuse issues he's suspected of). I would say that, technically, he is neither a criminal nor an enemy, but he certainly is a criminal suspect.

We Americans got out of the habit of "declaring" wars some time ago, sapient. So the jump from my "consider Assange an enemy" to your "declared war against Assange" is silly on several levels.

As for the US DOJ "investigating" Assange himself, I suppose they can investigate a ham sandwich if they're curious about it. But can they "prosecute" an Australian holed up in Britain for an alleged rape in Sweden? Does the US DOJ have world-wide jurisdiction over any and all acts the US government disapproves of?

Really? Has anyone declared war against Assange? As far as I've read, he's a criminal suspect in that the Justice Department is investigating whether to prosecute

Interesting problem. For example, members of the US intelligence community frequently access, attempt to access, or find themselves in receipt of classified info from other countries. Obtained in violation of the law of those countries.
Should they be prosecuted by those countries? Should we prosecute members of the British, Israeli, Chinese etc intel communities that successfully obtain US classified info?
[nb not talking about those acting on US soil, talking about those holed up in Beijing or Mumbai, analyzing data]
[And, whether or not we or they do doesn't seem to have anything do with being at war, I dont think that's relevant].

Or is there a exception to this doctrine for agencies of foreign governments, similar to the distinction between soldiers and bandits or warlords?

Now, the Justice Dept may well choose to prosecute Assange, but we shouldn't take that as proof that this distinction is meaningless, any more than we should accept the government's say on any other matter (eg classfying individuals as enemy combatants). Which, in a way, gets back to the heart of the matter.

Should we prosecute members of the British, Israeli, Chinese etc intel communities that successfully obtain US classified info?
[nb not talking about those acting on US soil, talking about those holed up in Beijing or Mumbai, analyzing data]

If they're foolish enough to come to the US, why not? I don't think any distinction needs to be made other than "we can't get at them".

We Americans got out of the habit of "declaring" wars some time ago, sapient. So the jump from my "consider Assange an enemy" to your "declared war against Assange" is silly on several levels.

Congress got out of the habit to formally declare war but 'America' loves to declare 'war' on a lot of things like drugs, poverty, terror, christmas* and to take at face value the 'declaration of war' by non-states like Osama bin Laden.

*in that case to claim that some in America did it (on a yearly basis).

"We Americans got out of the habit of "declaring" wars some time ago, sapient. So the jump from my "consider Assange an enemy" to your "declared war against Assange" is silly on several levels."

But you fail to state which levels, since in fact a criminal investigation is pending but no military action against Assange (declared or not) is. What is silly (and wrong) was your statement that "Americans can consider Assange an enemy, but not a criminal." My point being that you, and some other people in this thread, continue to make unsupported assertions.

"Does the US DOJ have world-wide jurisdiction over any and all acts the US government disapproves of?"

No, but it may well have jurisdiction to prosecute a conspiracy to violate laws regarding United States property and confidentiality. It would have to rely on extradition treaties to bring such a defendant before a court, but that's a separate issue (of international diplomacy).

"Or is there a exception to this doctrine for agencies of foreign governments, similar to the distinction between soldiers and bandits or warlords?"

See the doctrine of Diplomatic Immunity. Wikipedia provides a good primer.

"My objection is that Assange basically did the same thing that Scooter Libby did. They both leaked classified information. I just don't understand how so many people can object to one but totally support and justify the other."

That's exactly what made me so uneasy about the liberal embrace of the CIA during the Plame affair-this inability to make distinctions. People were saying things back then which would have implied that Ellsberg should have gone to prison and stayed there. "Leaking classified information" is a phrase which says nothing about whether it was good or bad to do so. Plame was investigating WMD's and doing something laudable-if she had been a CIA torturer and her name was leaked we have a completely different moral situation. Countries all over the world classify information and often it is for very bad reasons--as a rule Americans probably don't get too upset if someone leaks classified documents from some other country.

One can criticize wikileaks for leaking some things they shouldn't have leaked, or one can criticize them for leaking at all. The first criticism may have validity, while the second criticism implies that journalists should never publish leaks and furthermore, no one should ever break the law under any circumstances, to oppose an unjust war or an unjust social system or anything else. Which is absurd.

"The first criticism may have validity, while the second criticism implies that journalists should never publish leaks and furthermore, no one should ever break the law under any circumstances, to oppose an unjust war or an unjust social system or anything else. Which is absurd."

People who have practiced and taught civil disobedience, in the form of nonviolent passive resistance, have been willing to accept the legal consequences of their actions in order to expose bad laws and change them. It's a brave thing to do. But part of the results is scrutiny of law, and a determination by society of what, exactly, should be changed. In terms of the confidentiality of government documents, most of the people here haven't articulated a coherent policy that should be followed. Some people seem to say that all documents should be publicly available. Some seem to think that some things should be confidential, or that diplomats should be able to work in an atmosphere where some confidential trust relationships are built, but it's not really clear where people are drawing the lines.

I think Sebastian is right - there's room for whistleblowing, but until we can figure out a better overall policy, the whistleblower should be able to use that (calling attention to illegal activities) as a legal defense, not just be able to breach confidences and publish documents without discrimination as to what they are.

sapient: the whistleblower should ... not just be able to breach confidences and publish documents without discrimination as to what they are.

Julian Assange is an Australian who lives outside the US. What on earth does it mean to say that he "should not be able" to publish whatever he feels like and comes into possession of? What possible jurisdiction could the US have over a foreigner in a foreign country alleged to have done something that is protected by the First Amendment in the US?

The original whistleblower in this case is alleged to be a US Army private, who is, if found guilty, likely to go to jail for a long time. He did his civil disobedience and now he's going to do his time. Does that not satisfy your need for someone to be punished in all of this?

Oh come on sapient, the NSA, DoD and CIA have been spying indiscriminately all over the world for decades and you really expect us to buy your "rule of law" nonsense. Apparently that rule is only ever invoked when "US interests" are at stake.

For those who missed it John Kerry made the distinction between Assange and Ellsberg this morning on Meet the Press and, while he tried, he struggled with differentiating between Vietnam and Afghanistan. Other than that he was his normal useless self.

Hugh Gusternman, professor of anthropology, discussed the case in some detail in a class I took at MIT on ethical conflicts in American Science in 2002. There's some information about a later version of the same class available here but since this material was from Gusterson's lectures and not the readings, I can't give you a journal cite. If you're really interested, feel free to contact Gusterson and ask; he's at GMU I believe.

and which oceanographers you are referring to who were not given clearance but their friends were. Who was doing oceanographic work that was completely unfunded by the government, yet required the information the government was getting on ocean floor mapping? And were they false maps or did they fail to have the level of detail that the classified maps did? It seems incredibly specific to suppose there were oceanographers who were interested only in the effects of temperature clines on the transmission of soundwaves in water, but were unable to get clearance and therefore unable to get the information, so their talents were left to languish.

But that's not what I'm claiming. I'm saying that some oceanographers who did not have security clearance were stuck unknowingly doing analysis using fabricated data. Not having a clearance is hardly a bizarre event: I mean, getting arrested at one anti-war protest might sink your chances of (or interest in) getting a clearance. Surely you appreciate the fact that such behavior was very common amongst university professors and students during the cold war? And I've known people who, because they moved a great deal as children (ironically because their parents were military officers), simply could not get a clearance because it would be too costly.

But oceanography is a pretty big field, so it is reasonable to assume that they chose something that was less vital to the nation's defense.

Given a choice between your unfounded assumptions and a distinguished anthropologist, you'll forgive me for trusting Gusterson more. Perhaps after you do some scholarship that's even remotely comparable to his I'll change my mind.

It would have been great not to have a Cold War, but your impassioned denunciation (oceanographers poring over false data whose colleagues were flirting with death to even talk with them?) pretends, like Assange, that the only problem involved was secrecy.

First, I never claimed that this was the only problem in the world. I merely pointed out that your explanation was, shall we say, incomplete. And not just incomplete, but incomplete because you were ignorant of or chose to ignore the malign influence of state secrecy.

Second, I really don't see the problem with pointing out that during the cold war, someone with a clearance who leaked classified information might reasonably fear for their life. I mean, is it your contention that the US never executes criminals? That releasing classified data is not a crime?

"Second, I really don't see the problem with pointing out that during the cold war, someone with a clearance who leaked classified information might reasonably fear for their life. I mean, is it your contention that the US never executes criminals?"

Sorry, that may have been cryptic. It probably isn't a good point to suggest that someone (American) with a clearance who leaked (generally) classified information might reasonably fear for their life. The concept of 'classified information' is too broad for that to be a good point. If they leaked the plans to a new nuclear bomb which was very powerful and easier to make, maybe. Other than that, almost certainly not. So your point is probably strictly correct as formulated, but not very useful when talking about oceanography.

"What possible jurisdiction could the US have over a foreigner in a foreign country alleged to have done something that is protected by the First Amendment in the US?"

Whether his conduct is protected from criminal prosecution is an issue for the courts; whether he's protected by the 1st Amendment is another; the facts of how he received the information is another (did he pay or otherwise conspire?). I don't really know, Jacob Davies. What I do know is the you don't know either. And people here making unsupported assertions, such as "information isn't property" are speaking out of their @$$.

I'm not particularly interested in anyone being punished. I'd like to have a clearer idea of what people think should actually be done, institutionally, to figure out what secrets are legitimate for the government to keep, so that legitimate secrets aren't leaked, and so that diplomats know what their boundaries are in order to have some leeway to conduct diplomacy. Nothing anyone has said here provides any degree of guidance on that question. It's all about "Hey man, let's blow up the diplomats' confidential working relationships!" or "Secrecy always bad!!" I don't agree with that, and no one's making a very persuasive argument. [Someone will no doubt state: "B-b-but nobody said that ALL secrecy is bad!" But that person will, of course, not tell us how we're supposed to discriminate between legitimate secrets and bad secrets. Only Sebastion has done so, by talking about whistleblowing as a test.]

Wikileaks has revealed nothing about U.S. foreign policy that we didn't already know.

It probably isn't a good point to suggest that someone (American) with a clearance who leaked (generally) classified information might reasonably fear for their life.

In my experience, people with clearances are instructed, repeatedly and at great length, that they are not capable of determining how dangerous any particular piece of classified information will be if publicly revealed. They are explicitly told that even innocuous bits of data could lead to the deaths of many people when revealed to an adversary who has the resources to combine such innocuous data into a larger picture.

So your point is probably strictly correct as formulated, but not very useful when talking about oceanography.

In this particular case, I think that the oceanography data in question was perceived as being of significant strategic utility. I mean, the US Navy had some concern that Soviet submarines might take advantage of undersea topography to hide from US boats and facilitate rapid strikes at US targets, and this concern motivated their cooperation with oceanographers in the first place.

I think you're splitting hairs unnecessarily. If Assange hadn't published it, the information wouldn't have become public. Don't you think publishing unauthorized information is as objectionable as the original theft of it?

@Donald Johnson:

You're right that setting up any sort of absolute is absurd. But one significant difference for me between Assange and Ellsburg is that what Ellsburg exposed was illegal, had been specifically forbidden by Congress, and yet had been specifically denied by Nixon's government. Assange, on the other hand, basically aired dirty laundry.

Ellsburg's actions put in motion the end of a disastrous war that the administration would not admit was going wrong. Assange, at minimum, showed diplomats to be as catty as any group of teenage girls; at worst, he exposed some contacts to danger (not unlike Valerie Plame). Plus, in the case of Iran, he compromised back-room cooperation from neighboring countries. I don't see the two situations as comparable in any way.

The problem I have with Assange and Wikileaks from my current point of view is that he wants to rob the rest of society the government (sic) of the chance to negotiate the norms.

Which , of course, Assange attempted to do but the government (society in this case) refused to even discuss not releasing documents the government deemed too sensitive. So, Wikileaks, in possession of the documents, went ahead and released them all.
Your attempts to discuss "societal norms" in a conversation about a society (i.e. its government) that has routinely tortured, kidnapped and killed, in secret mind you, is risible. In an attempt to expose the rendition, the judiciary supported the government's contention, with a mere assertion, that any information about society's (er, government's) actions cannot be disclosed.
And you want to argue that Assange wants to set the norms? Sorry, too late for that, the government took that train down the tracks a long, long time ago.

I think you're splitting hairs unnecessarily. If Assange hadn't published it, the information wouldn't have become public. Don't you think publishing unauthorized information is as objectionable as the original theft of it?

Newspapers publish classified information all the time. Do you really think that Pulitzer prize winning journalists like James Risen at the New York Times should be imprisoned? Do you think they should face massive social condemnation? Do you think their behavior is wrong?

Assange and Ellsburg is that what Ellsburg exposed was illegal, had been specifically forbidden by Congress, and yet had been specifically denied by Nixon's government. Assange, on the other hand, basically aired dirty laundry.

Um, are you aware that one of the Wikileaks cables describes US government efforts to get German officials to stop prosecuting US government officials who kidnapped and tortured an innocent German and then left him for months in a secret prison AFTER they concluded that he was completely innocent? That's dirty laundry to you? Does that behavior sound legal to you? Because it sounds like a violation of the Convention Against Torture to me, and the CAT was ratified by the US congress. I don't see such a huge distinction between Assange and Ellsburg as you do.

Plus, in the case of Iran, he compromised back-room cooperation from neighboring countries.

"I mean, the US Navy had some concern that Soviet submarines might take advantage of undersea topography to hide from US boats and facilitate rapid strikes at US targets, and this concern motivated their cooperation with oceanographers in the first place."

I'm sure it did, but considering that the last case where leaking secrets led to the death penalty involved leaking nuclear plans to the Russians before they knew how to make a bomb, it still feels like you're stretching. Even Aldrich Ames didn't get the death penalty.

I also question your false data premise. Are you sure you're relaying it properly? I strongly suspect that in most cases it would have been "less detailed than would have been available with a security clearance", and that otherwise it would have involved small shifts in the exact location of a trench, as opposed to wholesale scientific rewriting. Which by the way is pretty much a time honored map-secrecy thing dating back to at least the Greeks and Phonecians.

See the doctrine of Diplomatic Immunity. Wikipedia provides a good primer.

It does- it explains, for example, that it protects certain diplomats- it does not protect eg every single CIA, NSA, etc worker who has access to (ie "receives") information classified by other countries.
Here's the first sentence of the Wikipedia acticle, with a little helpful highlighting to aid in your defective comprehension:Diplomatic immunity is a form of legal immunity and a policy held between governments, which ensures that diplomats are given safe passage and are considered not susceptible to lawsuit or prosecution under the host country's laws... There is also a helpful chart of cateogories of diplomatic immunity as applied by the US- don't strain your eyes looking for members of the foreign country's intel community.
People in the intel community are not being prosecuted because they haven't broken a law, not because there is some diplomatic immunity that applies to every single employee of the US government (plus contractors). Or, if you think otherwise, try making the case that this is true.
Take, for example, the spying that has been carried out by Israel against the US. Individuals who committed criminal acts against the US are prosecuted- no one whose actions were undertaken solely on foreign soil- *including* planning and facilitation beforehand (ie conspiracy), or receiving and utilizing that intel are ever prosecuted, extradited, etc.

Now, as I said before, there may be some tacit categorization of these activities similar to the explicit categorization of certain military actions as not being subject to local criminal law. But this has nothing to do with explicit diplomatic immunity.

And people here making unsupported assertions, such as "information isn't property" are speaking out of their @$$.

I still can't prove a negative. You still haven't even made a coherent attempt to prove the positive case. Let's recall, your last attempt to disprove this invoved citing a computer hacker who received stolen physical property (ie computers), raising considerable doubt as to whether you understand the basic concepts being discussed in the first place. You haven't tried since then- maybe, instead of spending your time with your penny-ante insults, you could find what ought to be easily available proof that this is incorrect.

considering that the last case where leaking secrets led to the death penalty involved leaking nuclear plans to the Russians before they knew how to make a bomb, it still feels like you're stretching.

I don't see why anyone would assume that the most serious cases of espionage would be publicized. I mean, those cases that might warrant the death penalty are the cases least likely to get a public trial.

How is it that Wikileaks should be able to annoit itself as the "deciderer" of what should and shouldn't be secret?

This was, of course, a completely non-sense rhetorical question. WHO is to decide that we should be a democracy? Or that we should our rights to privacy respected? Or any other Constitutional guarantee we currently have. In our case it was the founding fathers whose rebellion wasn't even supported by the majority of citizens (65% were either loyalists or proclaimed neutral).

Yet, here we are... The descendants of people who appointed themselves to go to war with England, despite the majority of the country did not while asking a silly question about "who appointed..."

People create that right by their actions and need for justice against tyranny. And tyranny, a light form perhaps, is something we're marching toward. Where one man, the President, makes up rights and privileges clearly contravened by the Constitution designed to limit him all in the name of some phony "war on terrorism" that does not exist.

"I don't see why anyone would assume that the most serious cases of espionage would be publicized. I mean, those cases that might warrant the death penalty are the cases least likely to get a public trial."

Well I guess there is no way to argue with that! Hypothetical other leaks that hypothetically may have happened may not have hypothetically led to a trial and made have hypothetically led to the leaker being killed.

That isn't impossible.

I will say that your third party implication that scientific oceanographers were at risk of being killed if they revealed the 'real' data to other poor innocent oceanographers is overwrought. Aldrich Ames didn't get the death penalty, and he straight up gave agents to be murdered by the Soviets. You're engaging in hyperbole when you say things like "Can you imagine being an oceanographer with clearance whose friends down the hall didn't have clearance? You'd see them every day but you wouldn't be able to tell them that their life's work was a complete joke, on pain of death." If Ames wasn't executed, your hypothetical oceanographers wouldn't be either.

Again you're in the excluded middle. Yes it is possible that the US summarily executed some leaker somewhere who did worse things than Ames, but less than the Rosenbergs.

But it wasn't any of the oceanographers that we're talking about, and it wouldn't have been.

And BTW, I'm of the opinion that trench mapping by the US government was probably a straight up wholly legitimate military secret at the time of the Cold War. Not a great example of 'bad' secrets at all.

"People create that right by their actions and need for justice against tyranny. And tyranny, a light form perhaps, is something we're marching toward. Where one man, the President, makes up rights and privileges clearly contravened by the Constitution designed to limit him all in the name of some phony "war on terrorism" that does not exist."

This is an argument for the whistleblowing side, but not for all the other wikileaks publishing. If wikileaks were all or even mostly about that, we would be having a very different discussion.

And BTW, I'm of the opinion that trench mapping by the US government was probably a straight up wholly legitimate military secret at the time of the Cold War. Not a great example of 'bad' secrets at all.

Has someone argued otherwise?

Let me be clear: if the Navy wants to do lots of research and classify it all, I've got no problem with that. The problem arises when the Navy pays oceanographers to do research, classifies it, and then pays oceanographers to produce fake research and publish it. Do you see the distinction?

"Plus, in the case of Iran, he compromised back-room cooperation from neighboring countries. I don't see the two situations as comparable in any way."

Turb responded in part about dirty laundry. I'm more than a little disgusted with the way people keep dismissing the importance of what has been revealed. Much of it is gossip (and in that case I don't care one way or the other whether it is revealed), but some of it shows the US conspiring to prevent justice being done.

Now as for working with Iran's neighboring countries, probably the biggest reason the US is distrusted in the Arab world is because of the huge gap between our professed ideals and our actual behavior. We say we want democracy and openness and accountability--then we have the deputy prime Minister of Yemen joking around with American diplomats about how his government will take responsibility for air strikes, some of which have killed civilians. Here is Amnesty International on that point--

Is that dirty laundry? Is this the sort of backdoor cooperation ordinary Americans want their government to be engaged in? Maybe so. Then don't be surprised if the average Arab takes America to be hypocritical when it professes its belief in openness and accountability.

The same goes for the Arab dictators who publicly oppose an attack on Iran, presumably because that is what their citizenry wants to hear, and then privately ask the US to do precisely this. Now if this is what American liberals support, then by all means criticize wikileaks for what it does to our diplomatic efforts.

Sebastian, by the way, I'm still looking for answers to the questions I posed to you in this comment. The questions I raised there have a lot more relevance to Wikileaks than the peripheral points you've been discussing here, no?

"The questions I raised there have a lot more relevance to Wikileaks than the peripheral points you've been discussing here, no?"

No, I'd say the whistleblowing/non-whistleblowing distinction is much more important than whatever was bothering you about the word 'rubric'.

In any case, that comment got lost because it was the last before the next button I suspect. But I think we're going to have to agree to disagree about what Assange's interviews mean.

They may not be the actual moral rubric used by Wikileaks, but they are as much of the moral rubric used by Wikileaks as the shadowy organization is willing to let us in on.

You can claim, if you would like, that the leader's published insights on why leaking is good and under what circumstances it should be done, aren't a good insight to a tight and secretive organization named WikiLeaks run by that very man . But I'm not buying it.

If you want to claim that the moral rubric publicly outlined by their leader is not the moral rubric by which WikiLeaks operates, that is fine. But then you are left with the idea that we essentially know nothing at all about the moral rubric by which they operate, which is a completely different argument (and by my judgment wrong).

Either it is in fact the moral frame under which they operate, or it is deliberate lying about the moral frame under which they operate. It doesn't strike me as likely that he published all these thoughts and interviews and didn't intend it to be perceived as an insight about how they make decisions. It could be that he has engaged in deliberate misinformation, but other than that supposition (which of course you are free to argue) I would strongly suggest that his interviews and writings on the topic of secrecy and leaks are the moral framework of Wikileaks.

Thanks, ptl. Those are informative links, and as some of the discussion suggest, the prosecution of Assange would not be a "walk in the park." But certainly not out of the question.

Carleton, re: information as property: I certainly cited a case where information was considered property for purposes of the tort of conversion. And the criminal statute that I cited from the US Code prohibits "conversion". So, you're right, it's difficult for you to prove the negative that information is not property since it is property, although usually treated as "intellectual property." Though, as the conversion cases demonstrate, not always. Again, not a "cake walk" perhaps, but that's something for a court to decide, not for you to proclaim.

Let me say one other thing: If I were Dick Cheney, and trying to undermine Obama's presidency, I'd be quite happy to "expose" the state department at this time. The problem with some of the comments here is that they remind me of a "tea party of the left."

"Gummint is bad!" Of course, the reasons the people here hate the US government is mostly about the Bush crimes, and because Obama isn't prosecuting them. But I think it's perilous to undermine Obama any more than he is already being undermined. The US is already burning, and I'm not so sure that there's going to be a Phoenix arising out of the ashes. Frankly, I'd rather slow down the process until I see where it's going.

Carleton, re: information as property: I certainly cited a case where information was considered property for purposes of the tort of conversion.

And I clarified that we were discussing criminal law. There's a gigantic difference between civil and criminal law, they are two entirely different animals.

And the criminal statute that I cited from the US Code prohibits "conversion".

And I explained that new laws addressing the criminal issues around information theft etc demonstrate that existing laws concerning stolen property were insufficient to deal with data theft. Witness, for example the very People Magazine article you cited, which pointed out that the perp's actions inspired new laws specifically penalizing hacking activities.

Note that Im not saying that possessing or obtaining information is necessarily legal, just that the standards concerning real property are the wrong standards. You continue to demonstrate this by bringing up new laws that address these sorts of problems without understanding that this, in and of itself, demonstrates that the "receiving stolen property" bit is therefore not useful.

Of course, if Wikileaks' personnel are guilty of some crime based on possession of information, then surely any journalist in possession of classified information is also guilty. Which would be both novel and frightening. As are any attempts to decide that Wikileaks is not a journalistic enterprise based on some ad hoc criteria such as editing or 'positive impact'.

Of course, if Wikileaks' personnel are guilty of some crime based on possession of information, then we'll have to accept that individuals in possession of material classified by eg China might be considered lawbreakers as well.

Im not sure how strong the correlation is between thinking that Wikileaks is on the right side of the law and thinking that Wikileaks is doing a good, or at least not a terrible, thing. Seems like a pretty good predictor so far though. [Counting me as well: Im not sure they've done much practical good, but I am enjoying the national discussion he's sparked (except for the inevitable proto-fascist "string him up" stuff). And I find it unlikely that he ought to be prosecuted under existing standards unless he's crossed some line Im unaware of, although it's entirely like that, like Noriega, the US will bend existing standards to hell and back if they so choose].

Um, are you aware that one of the Wikileaks cables describes US government efforts to get German officials to stop prosecuting US government officials…

Okay, that's one out of how many tens of thousands? Does one cable justify the entire dump? If Assange had any sense of honor, he'd have just released that specific one.

Assange is not remotely anything like Ellsburg. Assange's actions are more like Cheney's puppet outing Plame. Both felt they were righting what they considered a wrong, when what they were both doing was in fact illegal.

Perhaps after you do some scholarship that's even remotely comparable to his I'll change my mind.

Seb has contrasted your first formulation (which contains an implicit jab at my father's work and whether I am getting the whole story or not) and your cite to a lecture, but I'd just add that you are simply making an appeal to authority.

In looking at the readings, I assume that the information came in Earth Science and the Cold War, which had a guest speaker, and the most likely reference is Ray Seiver's piece in a collected Chomsky adn Zinn edited volume. This is not to dismiss Chomsky and Zinn, but this review suggests that the focus is not where you put it and the piece is more of a counterpoint to Lewontin's essay:

In his contribution to the collection of articles published in The Cold War and the University, R. C. Lewontin, a biologist at Harvard, addresses the research issue at some length. His briskly written article details what he calls "the big truth about the Cold War and the academy," which is that it was "the high road to professional prosperity for the great majority [of professors]." This overstates the case, as Lewontin goes on to show, but the essential facts speak for themselves. ...
Lewontin calls federal research support the "socialization of educational costs," something the modern state required to increase its wealth and power but which in America would have been hard to justify without the Cold War as an excuse. Oddly, Lewontin argues that since the benefits to government and industry of scientific research and development are so enormous, another excuse will be found to support them. This view is contradicted by Raymond Siever, a retired Harvard geographer, whose pithy article explains how Cold War spending transformed the earth sciences. Siever opens with these words: "A well-known geophysicist once remarked, only half-jokingly, that the plate tectonic revolution and the contemporary view of Earth [were] . . . product[s] of the Cold War." Geologists, geophysicists, oceanographers, physicists, chemists, and others received torrents of cash from the Department of Defense and from many other federal departments and agencies. But when the Cold War ended, Congress began ruthlessly cutting support for scientific research, including some defense projects-although the Department of Defense has experienced smaller cuts than have civilian institutions. Famous laboratories are in danger, argues Siever, and many important programs have been reduced or eliminated. Some politicians talk about further "privatizing" scientific research, but industry has shown little interest in supporting basic research beyond the areas it is already funding. If there is an alternative "excuse" for such support other than the Cold War, it has yet to emerge, which makes Lewontin's optimism seem misplaced and Siever's concerns well founded. According to Siever, if the cuts engendered by political know-nothingism and business priorities continue, the United States will end up as "an undeveloping country."

I also note that he does not give the reference of Hamblin's Oceanographers And The Cold War: Disciples Of Marine Science, which makes no mention of either oceanographers threatened with death or the kind of wholesale falsification of data that you suggest. The book does go into to great detail about how military funding did intersect with their mission, and it was to science's detriment, but it wasn't because there was wholesale false data floating around, but more because Russian scientists didn't believe in plate tectonics and the possibility of mesoscale phenomenon. For a short version, you can look at the this pdf to see what was happening in the field at that time.

At any rate, I'll contact Prof. Gusternman, but in the meantime, I hope you'll forgive me for continuing to believe that your claim is more hyperbole than fact.

Carleton: "And I clarified that we were discussing criminal law. There's a gigantic difference between civil and criminal law, they are two entirely different animals."

Thanks for the lecture, Carleton, but I managed to grasp that distinction in law school. The act of conversion, a form of theft, is similar in both bodies of law.

As my legal research tools are currently limited to the Internet (no Westlaw or Lexis at the moment), I might not be finding the most persuasive authorities, but it does look like data theft has been prosecuted under the "conversion" portion of 18 USC 641 in, for example, United States v. DiGilio, where FBI files were photocopied. It's an older case, to be sure, but just because new statutes have been passed which are more finely tailored to Internet hacking, etc., doesn't mean that old theories can't be applied. The Shmueli case that I mentioned was decided in 2005, and a subsequent higher court decision (Thyroff) in 2007. These civil cases provide recent affirmation that information certainly is property subject to a traditional conversion theory.

So I've enjoyed surveying the recent cases and developing this theory for you, to which you have answered with no authority but your own pronouncements. Eric Holder might choose a different path, but my point was to let you know that when you pontificate on subjects that you don't know much about, you should probably cite a source.

(By the way, your reference to "real property" was a brain fart, I assume, and not a display of ignorance, as I never mentioned "real property". Maybe you meant "tangible property"? And as to your snarky comment about my citation to a popular publication to note the existence of a prosecution for "receiving stolen property," the fact that most trial court decisions aren't published in legal case reporters requires one to resort to the general press even when better legal resources are available.)

Sapient, didn't the case you cited invoke trade secret law and copyright? IANAL but do either of those things apply to works produced by federal employees in the course of their work?

And did that case relate to the publication of the copied documents or were they copied for private perusal and gain?

That would seem a significant difference considering that we're talking about First Amendment defenses. Honestly it feels like you're fishing for some theory under which Assange could possibly be prosecuted even if t was purely a harassing action, because you think he needs to be punished to set an example, which isn't really what the law is for; it's not a bludgeon for battering enemies of the state, it's there to serve justice impartially.

I get why you disapprove of what Assange did, speaking for myself I'm interested in talking about whether it was a good idea, but to fix on criminal punishment as the most important aspect seems odd to me.

Jacob, people on this comment thread are stating a lot of things as legal conclusions, without citing any legal authority. Some people have said things like "Assange is not guilty of a crime." "Assange is protected by the First Amendment." "The U.S. can't exercise jurisdiction over a foreign national not in this country" I have attempted to address some of those issues by saying that if Assange has conspired to acquire the data in order to publish it, he might well be guilty of a crime. Whether it's the Espionage Act, or simply a theft crime such as "conversion" he could be prosecuted (depending on the facts, many of which we don't know) and subject to US law if he can be extradited. It simply bugs me that people make unsupported statements to the contrary.

In response to my statement that he could be prosecuted under theft laws, people (Carleton Wu) said things like "Information is not property, so theft crimes don't apply." Again, unsupported. I cited cases in response to suggest that yes, it is property. (Most recently, I cited a federal criminal case under 18 USC 641 in which FBI files were photocopied, and the copies taken and apparently sold or distributed. This case is an example directed at Carleton's erroneous and unsupported assumption. )

Whether the First Amendment applies to protect Assange (assuming he's not guilty of conspiracy), as so many people have proclaimed that it does, that is an open question which would require a lengthy discussion based on facts and precedent. Instead, people make statements like "Assange is protected by the First Amendment." Well, maybe so, but there's also a good chance that he's not if you read the Breyer's concurrence in Bartnicki v. Voppe, and see who dissented and who's still on the court.

As to the topics appropriate for this thread, they've been pretty wide ranging: mostly about how secrecy has contributed to the continuing crimes of the US government, the extent to which diplomats should be able to keep their work product a secret from the public, the history of oceanographic research during the Cold War. Sorry if my little sidelight didn't interest you.

but it does look like data theft has been prosecuted under the "conversion" portion of 18 USC 641 in, for example, United States v. DiGilio, where FBI files were photocopied

Let me, for the third or fourth time, explain- I am not saying that there is not or can not be a law criminalizing either the theft of or other activities (eg possesssion) pertaining to stolen information. I am saying that, simply, the law does not treat information as property for the purposes of eg charging people with theft. Thus, there are specific laws that address this sort of thing. As opposed to our lack of specific laws concerning stolen microwaves, which (being physical property) are handled using the existing laws on stolen physical property.
Ergo, in any discussion of whether Wikileaks is in violation of the law, we ought to be referring to the laws in question, not to laws concerning the possession of stolen physical property, which afaik do not pertain to this sort of thing.
Does 18 USC 641 apply to Wikileaks? I think the "with intent to convert it to his use or gain" suggests that it doesn't. But, if it does, it would seem to apply to any journalist etc in possession of classified information. Unless there's some other distinction to be drawn between Wikileaks and the Washington Post.

Let us recall that you said: Receiving stolen property is a crime in most jurisdictions, as if this were as straightforward as the possession of a stolen microwave. A lawyer- well, a lawyer *ought* to know better than this.

For additional fun, US v DiGilio states in part: It is not necessary to accept the government's thesis [that information is covered by § 641] in its entirety to hold that in this case a § 641 violation was established. This case does not involve memorization of information contained in government records, or even copying by thieves by means of their own equipment. Irene Klimansky availed herself of several government resources in copying DiGilio's files, namely, government time, government equipment and government supplies.8 That she was not specifically authorized to make these copies does not alter their character as records of the government. A duplicate copy is a record for purposes of the statute, and duplicate copies belonging to the government were stolen.

That is, the court used a physical theft to justify upholding the conviction. Thanks for playing though. Do you read any of this stuff before posting your links?

And as to your snarky comment about my citation to a popular publication to note the existence of a prosecution for "receiving stolen property"...Thanks for the lecture, Carleton, but I managed to grasp that distinction in law school.

You went to law school, and you were citing People Magazine to prove that a stolen computer (nb computers are physical objects, like microwaves) is like "stolen information"? I think you should ask for your box tops back.

We can express our admittedly nonexpert opinions on whether Assange 1) will and 2) should be protected by the First Amendment. We can presume that he will by virtue of the fact that nobody has ever been successfully prosecuted for something specifically like this before. By all means differ, but I'm not going to state that sort of opinion hesitantly. I don't think it hesitantly. I'm damn sure he'll be protected by it.

And I find the idea that we should state opinions about whether someone has the right to publish things as wholly conditional on the sufferance of a court as, well, not good. We all possess our rights. We possess them even if we are among people who don't agree that they exist or respect those rights; we possess them even if a court decides that they can be violated at some moment in time, if that decision is unjust, even if that court is the Supreme Court.

It makes me uncomfortable to talk about the right to free speech as if it was conditional and no presumption should be made that any given act of speech is legal. That's not how rights work.

Carleton, more cases where intangible property misappropriation was prosecuted under 641: United States v. Forman, 180 F.3d 766, 767-68 (6th Cir. 1999)(information from a confidential government report concerning a criminal investigation); United States v. Collins, 56 F.3d 1416, 1419-420 (D.C.Cir. 1995)(computer time and storage); United States v. Martzkin, 14 F.3d 1014, 1018-21 (4th Cir. 1994) (bids on government contracts); United States v. Jeter, 775 F.2d 670, 680 (6th Cir. 1985)(information as to matters occurring before a federal grand jury); United States v. Girard, 601 F.2d 69, 70-1 (2d Cir. 1979) (identity of government undercover agents); United States v. Lambert, 446 F.Supp. 890, 892-95 (D.Conn. 1978) (information stolen from a DEA computer data base) These cases I've only glanced at, because I'm out of time for this, but they all involve prosecutions under the statute for intangible property (information). (I note that you have come up with nada thing so allow me - there is apparently a lone federal circuit (the 9th) that has held that 641 does not apply to intangible property. So it's not cut and dried.)

Jacob, ideally rights are inalienable, but whether the Constitution (1st Amendment) actually protects them is up to the courts. Sorry if that's an uncomfortable thought. And what's at issue here is not free speech. Arguably, the people speaking freely only did so because they believed their confidentiality would be protected. So much for their rights and expectations. We're talking about freedom of the press (if indeed Assange's publishing project is "the press" - taking people's work records and indiscriminately publishing them to the world).

Maybe Wikileaks will create a better world, as you both seem to believe. I hope you're right.

And I find the idea that we should state opinions about whether someone has the right to publish things as wholly conditional on the sufferance of a court as, well, not good.

I agree entirely. I posted the links to Opinio Juris and the Volokh Conspiracy as a protest against closing discussion here by using is an issue for the courts and to illustrate a lack of consensus among lawyers in this instance. I now regret doing it.

Jacob, ideally rights are inalienable, but whether the Constitution (1st Amendment) actually protects them is up to the courts

sapient, that is trivially true. Gary McKinnon's extradition is, trivially, a case for the courts. I have not waited for a better world to protest against it.

It also implies passivity on part of the administration, when we know (thanks to the cables) that active steps were taken to prevent making life uncomfortable for Bush officials when it's tried by non-U.S. prosecutors.

This is precisely the right distinction; bravo. Leaking has traditionally meant a knowledgeable, well=placed person making a wise decision about the need to make public some specific information for the benefit of the public knowledge of the world & their government. We can argue wither a given leaker is such a person, but I think it isn;t aruable that Bradley Manning was one. Now, Manning's act is not Julian Assange's doing (unless it is in part). Frankly, I can't see anything in principle wrong with the role Wikileaks is primed to play in the world: being a secure clearinghouse for leaks & leakers and seeking maximum public impact when those leaks lead to good outcomes. The question is just whether they do it well. Accepting & releasing indiscriminate leaks is not playing the role well from a global societal perspective IMO, but then WLs is entitled to an opinion of its own.

And the thing to keep in mind is that their opinion is formed according to a set of values that Seb & I perhaps don't share: namely that the USG, being an unjust authoritarian conspiracy, needs to be resisted in most all its endeavors and capabilities, primarily its ability to control information & keep secrets. Essentially, it has no right to keep secrets, at least none that isn't auditable by WLs. Their goal is to make the USG less capable, full stop (look it up). Not, repeat not, to provide responsible disclosure of state secrets for the good of the American polity. The question of American overclassification as related to whatever the right-by-the-American-polity-level of classification should be simply isn;t on their radar. In that sense, overclassification simply is a separate question from the question of Wikileaks itself.

It is also a separate question from the action of PFC Manning, as, whatever we might decide better classification procedures might be, we did not empower Mr. Manning in his capacity as a 22-year-old Army enlisted soldier to decide the question in the cases of the millions of documents that he apparently, absurdly, had routine access to in the course of his duties. We give that decision to (elected) officials at vastly higher levels of government than he. If pieces of information are classified in his judgement to cnoceal wrongdoing, he may be justified in leaking them individually, but his action was the farthest thing from a discriminate leak of materials classified for that purpose. Rather, he leaked as far as I can tell, as much in furtherance of Assange's ideals as of the desire to expose the American people to wrongdoing in their name. If the latter was in fact his aim, he showed vastly insufficient discrimination in seeing that particular acts would be given the attention necessary to get it addressed. Each of the documents he leaked, in addition to the headline-grabbing numbers, detracted attention from each other document, preventing any one storyline from taking hold. The story has, in each major dump, essentially stepped all over itself. This is a clear illustration, not theonly one in this story, of why a naive 22 year old is not the person we want making determinations about what classified information should be leaked for our benefit, no matter how overclassified the activities of our intelligence, national security, and foreign policy state may be.

sapient, as an attorney, I'm sure you can find an infinite number of cases that bolster your claim that there is some very difficult highly unlikely to succeed manner for the government to prosecute Assange. However, it might be easier if you tried to explain to us non-lawyers why the US government has not made use of such statutes when prosecuting Wikileaks in the past or when prosecuting newspaper journalists like James Risen. Something prevented the government from using the laws you speak of to prosecute these people in the past. So what exactly distinguishes Wikileaks now from all those other cases?

I mean, there have been reports that the Bush administration was enraged at a number of Risen's stories that revealed classified information. And yet he was not prosecuted. Do you have a theory as to why? I think this would be a much more productive track than having you continue to dig up cases while Carleton continues to explain why those cases are just totally inapplicable.

Information will out, but...
Wikileaks is itself an unaccountable non-representative entity. They don't have the right to be arbiter of what gets released and what does not. One of the more immportant norms is that the names of sources stay confidential. Assange has trampled all over that one, and he's in the wrong for doing so. An untold number of lives have been imperiled.

Oh I agree. I mean, assuming that "untold" means something like "no evidence exists to support this". That's what you meant, right?

The earlier Wikileaks release that included the names of Afghans who cooperated with ISAF has not been shown to have caused even one death, and this one is much more carefully redacted.

Your concern for the imaginary peril that disclosure of these embarrassing secrets might cause is admirable. I'm sure you worry just as much about all the innocent people in Afghanistan or Pakistan or Yemen that get killed every time we do another drone strike. Right?

Turbulence: "it might be easier if you tried to explain to us ... why the US government has not made use of such statutes when prosecuting Wikileaks in the past or when prosecuting newspaper journalists like James Risen."

I don't pretend to be clarivoyant, but the operative word might be "journalist". Risen produced specific narratives based on his own research and facts, incorporating information from classified documents which were placed into the narrative in context. This is the traditional role of the press - and his actions were those more obviously protected by the First Amendment. In contrast, imagine someone soliciting and receiving many boxes of stolen confidential documents and placing them in a large storage room, then opening it up to the public. Would you call that "the press"? I wouldn't. That's what Assange has virtually done.

Again, I would suggest that you might enjoy reading Justice Breyer's concurrence in the Bartnicki case. To summarize: the case involved media publication of an illegally intercepted telephone call between two parties in a collective bargaining negotiation. Threats of violence were made during the course of the conversation. Breyer concurred with First Amendment protection of the published conversation, but stated:

But in this case, these were the factors that required the statute to be overridden by the First Amendment:

the speakers had little or no legitimate interest in maintaining the privacy of the particular conversation. That conversation involved a suggestion about “blow[ing] off . . . front porches” and “do[ing] some work on some of these guys,” App. 46, thereby raising a significant concern for the safety of others. Where publication of private information constitutes a wrongful act, the law recognizes a privilege allowing the reporting of threats to public safety. See Restatement (Second) of Torts §595, Comment g (1977) (general privilege to report that “another intends to kill or rob or commit some other serious crime against a third person”); id., §652G (privilege applies to invasion of privacy tort). Cf. Restatement (Third) of Unfair Competition §40, Comment c (1995) (trade secret law permits disclosures relevant to public health or safety, commission of crime or tort, or other matters of substantial public concern); Lachman v. Sperry-Sun Well Surveying Co., 457 F.2d 850, 853 (CA10 1972) (nondisclosure agreement not binding in respect to criminal activity); Tarasoff v. Regents of Univ. of Cal., 17 Cal. 3d 425, 436, 551 P.2d 334, 343—344 (1976) (psychiatric privilege not binding in presence of danger to self or others). Even where the danger may have passed by the time of publication, that fact cannot legitimize the speaker’s earlier privacy expectation. Nor should editors, who must make a publication decision quickly, have to determine present or continued danger before publishing this kind of threat.

The case, obviously, is not directly on point since it involves different statutes, protecting different interests. Still, the "whistleblowing" aspect of Sebastian's post makes sense if the court were to weigh First Amendment protections against other legitimate interests. The statutes protecting state department files exist in order that people can speak freely who otherwise wouldn't. That interest should be balanced against the right of the press to publish.

sapient, the government did not prosecute Wikileaks after it published the Iraq and Afghanistan war logs; those cases seem conceptually similar to the diplomatic cables. What's more, it seems like the government could easily prosecute Wikileaks for the Iraq/Afghanistan releases under the theory you describe. Right? So, again, can you please explain why the government refused to prosecute Wikileaks for the Iraq/Afghanistan war logs but would prosecute them for publishing the diplomatic cables? What precisely distinguishes the diplomatic cables from the Iraq/Afghanistan reports for the purposes of enabling a prosecution?

Do you see the distinction I'm trying to get at here? I fear that I'm not being clear....

Carleton, more cases where intangible property misappropriation was prosecuted under 641:

Fourth or fifth time: I didnt say that there are no statues covering the acquisition of or possession of stolen information, just that Receiving stolen property is a crime in most jurisdictions is a misunderstanding of the nature of information in law, and that a serious discussion should involve the statues in question rather than such an inexact analogy. As you've repeatedly demonstrated, laws were modified or new laws were created to handle this sort of problem.
I point out again, the law you've cited reads in part "Whoever receives, conceals, or retains the same with intent to convert it to his use or gain..." ie it does not criminalize the possession of stolen information, it (to the extent that "records" is information rather than physical records) criminalizes the intent to use that information in a certain way. Stolen property laws are not like that. In Cali (496 PC), the state just needs to show that the property was stolen, that you possessed it, and that you knew it was stolen at some point while it was in your possession.
To suggest that the one is exactly like the other, or worse that we can proceed using the latter, is the sort of legal thinking Id expect from a particularly inexperienced or inept layman, not a lawyer. (nb Cali has laws regarding data theft eg 502 PC, which again are distinct from 'stolen property' laws).

(I note that you have come up with nada thing so allow me - there is apparently a lone federal circuit (the 9th) that has held that 641 does not apply to intangible property.)

Since Im not disputing that point- I have, in fact, in virtually every post Ive made on the subject said that there are indeed laws regarding information- I have no idea why you continue to harp on it. I suppose I did point out that the DiGilio case didn't support your position, but that was mostly to observe that you've been repeatedly sloppy, posting cites that fail to support your position (perhaps hoping that no one will look them up?). And no, a lack of access to resources is not an excuse for misrepresenting (or misunderstanding?) cites.
Again, box tops- go for the decoder ring this time.

You could have just said "hey, let me clarify my position- there are laws pertaining to stolen information that wikileaks may have violated- let's discuss those", but you've chosen instead to try to bulldoze your way past the mistake. This has become profoundly boring- you may consider me to have replied "for the Xth time, I didn't say that there are no statues covering the acquisition of or possession of stolen information, just that 'receiving stolen property' statues aren't the right ones to be looking at" should you feel the need to continue on this thread.

Turbulence, you're clear, and I don't know. Maybe they don't have a decent case built. Maybe they're short on staff. Maybe there's not enough evidence. Maybe they feel that the First Amendment would bar the claim. Maybe they don't want to test it.

For that matter, I don't know precisely why they wouldn't try people who seemed to have committed war crimes. (My guess is that they don't want to embroil the country into a heated, political trial, and then lose when the Republican federal judiciary rules against them.)

I don't pretend to be clarivoyant, but the operative word might be "journalist". Risen produced specific narratives based on his own research and facts, incorporating information from classified documents which were placed into the narrative in context. This is the traditional role of the press - and his actions were those more obviously protected by the First Amendment. In contrast, imagine someone soliciting and receiving many boxes of stolen confidential documents and placing them in a large storage room, then opening it up to the public. Would you call that "the press"? I wouldn't. That's what Assange has virtually done.

It seems to me that, if desired, an individual or group of people could compose 'specific narratives' involving every single document released. Would they then qualify as journalism? If someone does so after the fact, would that qualify, or must the narrative be created before the release?
And, I think that a journalist could easily release a single important document or small group of documents without much in the way of additional commentary, and still have it be considered a journalistic act. Say, if someone uncovered a draft of an EO by Obama declaring martial law- just reprinting the unedited doc, sans narrative, would be (IMO) journalism.

It should be recalled that the freedom involved here is the "freedom of the press"- not the freedom to do journalism, but literally the freedom to print documents on a press (and distribute them). While the courts might listen sympathetically to arguments limiting this to activities involving acceptable narratives (and it's certainly reasonable to discuss what the court might listen to, without even the implication that this is your preferred reading), I find them disturbing.

Thanks for explaining sapient. Given that we don't have a good story explaining why the government failed to prosecute Wikileaks before or what has changed that would enable a prosecution now, it seems highly unlikely that the government will prosecute them in the near future.

Also, what Carelton said.

(My guess is that they don't want to embroil the country into a heated, political trial, and then lose when the Republican federal judiciary rules against them.)

Wait, what? The federal judiciary has been extremely deferential to executive branch claims about secrecy. AFAICT, this has been a bipartisan practice.

Sapient: The statutes protecting state department files exist in order that people can speak freely who otherwise wouldn't.

I guess I'd disagree with that description of their rationale. I'd say they exist so that the government can conduct certain kinds of business in secret, but they are not there to protect a right to private free speech.

The "speech" in question is their work product for the federal government. It may reflect their personal opinions to some limited degree, but it's not protected free speech even in the sense that one private citizen writing a letter to another is free speech: it's secret, but not private; it is not intended for a single recipient but for anyone authorized to read it; it is not permitted to be on any subject or to express any opinion, but must be restricted to the subject of that employee's work.

In other words the statutes protect secrecy of work product by providing for the punishment of (primarily) government employees for misuse. They do not protect a free speech-related right or in fact anything to do with individual rights. And so the balancing test is the state's interest in protecting its secrets against the publisher's right to free speech, not one speech right against another. I think that substantially weakens the case against a non-employee when there is no strong public interest to be protected by the secrecy.

It also pits a government interest directly against a private right, and that's exactly the kind of case that the Bill of Rights is intended to protect against. When one private party does something to another, they aren't backed by the force of the state. Corporations can't (yet...) have people arrested or throw them in jail on their own authority.

I think it would be very different if we were talking about disclosure medical records, say, where an individual privacy right was invaded. It would be different if we were talking about the disclosure of private correspondence not produced in the furtherance of government employment. It would be different if we were talking about the designs for thermonuclear warheads (although in that case the cat would be out of the bag by the time they were published). But we're not. We're talking about work product that the government wants to keep secret for plausible reasons, and it can reasonably use sanctions against its own employees to keep it secret. Nobody forces you to work for the government and certain limitations on the speech of government employees are absolutely reasonable.

This is why Pfc. Manning is likely to go to jail if found guilty. I don't object to that. I doubt he's enthused about the idea, but I'm guessing he accepts it at some level.

But that's a wholly different situation than that of Assange, who isn't even an American let alone an employee of the US federal government.

"I'd say they exist so that the government can conduct certain kinds of business in secret, but they are not there to protect a right to private free speech."

I think that diplomats might argue otherwise. They deal with people who expect a certain degree of confidentiality, and that if the United States can't be trusted with a secret, they won't be told things that are useful/vital to know. Agents in the field need to record this learned, confidential information so that a body of knowledge is available as a resource. Even where sources of the disclosures aren't specifically identified, their participation may be obvious to people around them.

So it's not just a matter of passing diplomatic secrets. Just frank, off-the-record discussions (as in the North Korea, as one of the more serious examples) should be allowed confidentiality.